Kiwis get strict copyright, three-strikes law at month’s end

"Graduated response" laws continue their world tour. Next up: New Zealand, …

"It is a strange fate we should suffer so much fear and doubt over so small a thing," says Boromir in the recent movie adaptation of the Lord of the Rings. The scene, shot in New Zealand, might pop into the minds of many Kiwis these days, as one tiny legislative change to copyright law is poised to bring "graduated response" (or "three strikes") rules to the country. And disconnection of users isn't just on the table—it's mandatory.

New Zealand's 1984 Copyright Act was last year amended in numerous ways, but the most controversial has certainly been new section 92A. "An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer," it says, and if that seems more than a trifle vague, you'll understand why ISPs are practically up in arms about it.

The bill gives no real guidance on what "appropriate circumstances" are, so ISPs are trying to hash out some sort of voluntary agreement with the local film industry. But because the law has already been passed and its February 28 implementation date is approaching, rightsholders are apparently being quite tough in negotiations. Things have grown contentious enough that the ISPs are now calling for a delay in implementing the law.

An ISP representative complained last year that "identifying repeat offenders will not be easy. A complex data matching exercise will be required, and even then it will not always be clear who the real offender is, particularly when an internet account is used by a family, a business or a school."

New Zealand Computer Society boss Paul Matthews questioned the reasoning behind the law. "You could use the same flawed justification that underpins this law to force The Warehouse to ban someone from shopping there for their food and clothes just because they are accused of copying a few DVDs that they have bought," he said. "Yes, copyright infringement is wrong, but it needs to be proven first and the penalty kept in proportion. Termination of all internet access in this day and age of online education, social networking and electronic services is a huge penalty."

And librarians worry that the vague wording will expose them to tremendous difficulties. A New Zealand library association complained this week that "an Internet service provider must terminate the account of a repeat infringer. This draconian provision would seem to mean that, if a user is found on more than one occasion to have illegally accessed or downloaded copyright materials, or otherwise breached copyright in a work, the ISP must terminate the Internet access not of the individual accused of breaching copyright, but of the account holder—that is, of the entire library."

New Zealand's creative industries, which generally welcome the law, say that "there should be no termination of the accounts of responsible businesses and organisations such as hospitals and schools as they will have responded to the first warning and prevented further infringement taking place." It's tough to see how a 200 person company or a public library could stop any three of its users from ever violating copyright using the Internet, however; better policies around this will clearly have to be worked out, as businesses who get cut off when a few interns download the latest pop single will be apoplectic.

The music and movie industries insist that graduated response is "not about ISPs policing the internet, it's about ISPs responding to a high standard of evidence of infringement and illegal activity on their networks supplied by rights holders. More than anything it is about educating users."

ISPs, much as they might not like the law, have a more specific business concern: the law does not appear to grant them legal protection even from rightsholders or end users. Content owners unsatisfied with ISP action could still sue the companies, alleging that they have not fulfilled their 92a responsibilities. Customers who are disconnected, especially in cases where mistakes are made, could potentially file suits of their own against ISPs. According to some IT folks who met with government ministers last year about the change, the government is aware of the issue but the message to ISPs was clear: "deal with it."

While tough sanctions like disconnection have been condemned by the European Parliament and avoided by the UK, France still hopes to implement them under its own graduated response regime. Irish ISP Eircom voluntarily agreed to such a plan after being sued, and New Zealand will try the idea out on a national basis. With milder versions of the plan coming to countries like the UK and the US, there's certainly something to the music industry argument that graduated response proposals are sweeping the globe.

How cute you actually think that voting changes anything. Precious. Vote in who you like, the corporate lobbies will just need a little time to buy their way as they have done the world over through out history.

"Power attracts pathological personalities. It is not that power corrupts but that it is magnetic to the corruptable. " --Frank Herbert

I totally agree with him, as history has proven this out time and again.

These laws are so obviously payed for by the **AA's, and the governments are going for it as it allows them a foot in the door to the internet and closer to total citizen monitoring.

Sadly, I think that chainsaw667 is correct. It just doesn't matter who you vote in. All established parties are same shit different package.

You would need to get rid of the politicians on all levels before you could make a true change. And even then there would have to be laws that prevent doing politics for longer than say 5 years (I guess that one persons honesty should be able to last that long most of the time).

Western democracies are geared towards catering to the rich and media is important as it keeps the stupid masses content and entertained (Romans had it already, "bread and games").

The bill gives no real guidance on what "appropriate circumstances" are, so ISPs are trying to hash out some sort of voluntary agreement with the local film industry.

Why? They should hash out an agreement with the legislators or police, as they are the ones who will have to determine what appropriate circumstances are.

It is not legal to throw someone in jail without the legislative branch deciding that they are indeed a criminal. Even the police do not have unilateral authority to determine who gets put in the overnight holding cell. Now a pair of commercial entities are being asked to uphold a law? I see no way, reasonable or irrational, that makes this law legal.

This really reminds me of those manager types who will give a near impossible directive to IT with a ridiculous time line and then say "Make it happen" without a thought given to what's actually involved or the repercussions.

oh man, we are now finally nearing the total collapse of the digital iundustry and life as we know it. Once we have sold out our rights to our own privacy, details, secrets to some fakking meida bosses I hope that the washout that comes will be harsh, will be remorseless and will finally find those that sells out the people against this stupid media corporation shit!

The best thing is that so many functions would collapse should roughly 30% of all the people between 15-35 be outside of internet - no democratic choices can be made online- Banks and postal services and shops needs to keep everythinng still physical. Wow, what a tremendous step forward to stop those who buys most media in this age. Once you have banned your consumers from their biggest marketplace - how will you next earn profit? Charging money for people talking about your games, songs and tv shows?

The music and movie industries insist that graduated response is "not about ISPs policing the internet, it's about ISPs responding to a high standard of evidence of infringement and illegal activity on their networks supplied by rights holders. More than anything it is about educating users."

Yeah, the **AA's have certainly shown just how high a standard they're putting forth as evidence in the numerous P2P file sharing cases they have prosecuted. Damn, I really needed a good laugh.

I don't know much about the New Zealand landscape of ISPs, but if they are publicly owned companies it seems to me that their response to this would be quit simple for them. Pull out of the ISP business.

The risk to reward equation for an ISP in New Zealand is atrocious. What do they stand to gain from this? Massive investments in time and hardware, which will, according to every professional without a vested interest in selling the hardware that I have heard, will tell you is next to impossible. As the article stated they will be facing a legislative nightmare. I can guarantee you that at least one of the first people to get cut off will sue the ISP stating that they were not the one who stole, this means massive legal bills. I can also nearly guarantee you that when this is as ineffective as nearly everyone but the media corporations and their political shills realize the ISPs will get sued by the media corporations or their political shills for not solving a problem that wasn't their problem to begin with. What is the reward? They get to keep their existing base of customers, which will likely defect quickly if they start enforcing this law, for ISPs that at least appear to be the least stringent.

Being an ISP in New Zealand now is a fool's game. If I were an ISP in New Zealand I would cut my loss or quit while was ahead, depending on their state at this time. I would sell off my hardware, if I could find anyone to buy it, I know I sure as hell wouldn't buy it. Take that money and pay off my investors and find a new country or a new line of business.

This is a fail / fail proposition for everyone involved and any ISP which is ran by anyone who has any common sense can see that even attempting to fulfill this is a losing proposition. Besides, maybe when New Zealanders have the worst internet system in the developed world they will serve as a wake up call.

Because this idiotically stupid "graduated response" ploy that the media companies are pushing to prop up their increasingly outdated and irrelevant business model will not stop the inevitable any more than DRM or wide spread lawsuits have.

The music and movie industries insist that graduated response is "not about ISPs policing the internet, it's about ISPs responding to a high standard of evidence of infringement and illegal activity on their networks supplied by rights holders. More than anything it is about educating users."

The same rights holders who try to sue dead people claim to have the "high standards{s} of evidence" to be the judge and jury... but now want the ISP's to be their executioner?

I'm with mknopp. If I were an ISP in NZ I'd be making contigency plans to close shop. If the incompentant and clueless industry associations want to police online data, let them try to build a walled garden data infrastructure and see how well they manage to run it.

I can guarantee you that at least one of the first people to get cut off will sue the ISP stating that they were not the one who stole,

You don't understand. The three strikes law (at least in France) introduce a new offense totally independant of (c) violation: running an insecure computer over the internet. So they don't need to prove that you downloaded copyrighted work, just that someone on your PC did. This is made so that **AA will win any legal action.

Second, I've heard people saying "you can just switch to a different ISP". That's not possible, a list of offenders is exchanged between ISP and it's impossible to get any new account. Note also that you continue to pay your ISP while being disconnected from the internet.

I guess the only hope in France right now is a European court of justice decision based on European parliament decisions.

I can guarantee you that at least one of the first people to get cut off will sue the ISP stating that they were not the one who stole,

You don't understand. The three strikes law (at least in France) introduce a new offense totally independant of (c) violation: running an insecure computer over the internet. So they don't need to prove that you downloaded copyrighted work, just that someone on your PC did. This is made so that **AA will win any legal action.

I use only WEP encryption on my wireless, technically it is secure. In reality and easily provable it is completely open to anyone with any kinda minimal tech skills and google. It would have to be "hacked" for others to get access yet it is so trivial as to be a joke. As far as I can see that steps neatly around that law, while still giving a good lawyer decent ammunition.

Well, if I were an ISP, I would take the stance that a repeat offender is one who has been convicted of copyright infringement using internet services more than once, and refuse to disconnect anybody else on the grounds that everybody is innocent, unless proven otherwise in a court of law.

Note that I hope this type of laws will finally give the development of ISP-less wireless mesh-networks a boost. Such networks will also reduce the big-brother aspirations of current governments.

I was hoping a native Kiwi would respond (probably sleeping right now). I was there a year ago, and my thoughts:

1) Population is 4.2million. That would make it the 26th biggest state in the USA (along with Kentucky). All politics are local, but in a country this small, it's doubly true. Companies can get serious face-time with politicians.

2) Internet was metered and expensive compared to my experience in Germany and New York. I'm sure some people have unlimited transfer plans, but everyone I met only had a couple of GB/month. I just didn't see wholesale P2P common elsewhere.

Things may have changed, but the biggest limitation was the bandwidth available from New Zealand to the rest of the world (it's a long way from NZ to anywhere, and running cable is expensive).

Well, if I were an ISP, I would take the stance that a repeat offender is one who has been convicted of copyright infringement using internet services more than once, and refuse to disconnect anybody else on the grounds that everybody is innocent, unless proven otherwise in a court of law.

The graduated response has nothing to do with (c) violation. There are already laws against that. Graduated response punishes people who don't use "adequate tools" to prevent their PC being hacked and used for illegal activities.

Note also that you can only defend yourself once you have been disconnected. And even if you do, the judge can not order a temporary reconnection, the judgement has to be entirely settled for that. This is because "internet disconnection" is considered a small annoyance (of course, that's completely wrong).

So either you say you didn't protect your PC, which is illegal. Or you say you protected your PC, and then you have to explain to a court how the illegal downloading happened despite the protection.

The problem with laws like this, is ignores the cost and reliability of such measures. Neither the government, nor the rights holders are providing funding to the ISPs to support these measures. In many ways this is the same approach to copyright, as the Chinese have to censorship: basically a requirement is put in place, without clear indications what is or isn't infringing. In China ISPs tend to go over the top, since it is safer that way, so will ISPs confronted with copyright laws such as this end up doing the same thing.

While I can appreciate copyright holders wanting to protect their works, they should not expect someone else to do it for free.

I wonder whether ISPs should band together and publish all take down requests sent by a copyright holder, so people can see who is complaining and whether the request is with merit. Though who is to decide that the 'offender' did something wrong and is the right one? An ISP follows the law, but they are not the law and therefore it is not really for them to decide that the party did something illegal without due process (or did we lose this too?).

In all reality laws like this are passed by people who have no understanding of technology and its limitations. To these people its all magic and people working in the field are equivalent to level 15 mages. Unfortunately we barely scratch level 1, and when we do make sparks we probably did something wrong.

I'm not a Kiwi, but I lived there for years. It's understandable that cynical Americans immediately assume that giant corporations are the shadowy puppet masters behind every political move (ironic too, since the giant media companies have perpetuated the evil CEO stereotype in their television and films), but in this case I think it's not so.

First off, FrisbeeFreek is right about the expensive capped and metered internet, and with such a small population, NZ is hardly a world leader in internet piracy, so it's doubtful that Viacom and Newscorp are flexing their muscle there. TVNZ is the only local producer with influence, but they've never made anything worth pirating. In fact, the only multinational corporations with a serious interest would be the telcos that run the major ISPs, and they would be weighing in on the other side (and hopefully will be soon).

Instead, I think this is a prime example of New Zealand's MPs ignoring their admittedly small constituencies to grab a little international publicity by "fixing" a global hot-button issue. It is an unfortunately common trend.

I was hoping a native Kiwi would respond (probably sleeping right now).

Good morning.

quote:

I was there a year ago, and my thoughts:

1) Population is 4.2million. That would make it the 26th biggest state in the USA (along with Kentucky). All politics are local, but in a country this small, it's doubly true. Companies can get serious face-time with politicians.

2) Internet was metered and expensive compared to my experience in Germany and New York. I'm sure some people have unlimited transfer plans, but everyone I met only had a couple of GB/month. I just didn't see wholesale P2P common elsewhere.

Things may have changed, but the biggest limitation was the bandwidth available from New Zealand to the rest of the world (it's a long way from NZ to anywhere, and running cable is expensive).

Yeah, our internet is not so crash hot. And sadly, I don't really feel there's much we can do to stop/change this change in legislation. I could write to my local MP. I'm sure that'll do a lot, right?

Globally, the quality of our internet is pretty low, and this is just going to make things worse. My hope is that the IPs can make an impression on the government, to if not repeal, to at least modify to something more sane.

quote:

TVNZ is the only local producer with influence, but they've never made anything worth pirating.

I was hoping a native Kiwi would respond (probably sleeping right now).

Good morning from another one!

quote:

This just might be enough to get New Zealanders to vote in better legislators...

Labour (our major left-wing party) introduced the legislation last year. In November we voted National (our major right-wing party) into government, and they pushed it into law. We can't win.

quote:

Why? They should hash out an agreement with the legislators or police, as they are the ones who will have to determine what appropriate circumstances are.

You'd think, wouldn't you? But no, the ISPs are the judge, jury and executioner in this case - the authorities don't have to be involved at all.

quote:

I was hoping a native Kiwi would respond (probably sleeping right now). I was there a year ago, and my thoughts:

1) Population is 4.2million. That would make it the 26th biggest state in the USA (along with Kentucky). All politics are local, but in a country this small, it's doubly true. Companies can get serious face-time with politicians.

2) Internet was metered and expensive compared to my experience in Germany and New York. I'm sure some people have unlimited transfer plans, but everyone I met only had a couple of GB/month. I just didn't see wholesale P2P common elsewhere.

Things may have changed, but the biggest limitation was the bandwidth available from New Zealand to the rest of the world (it's a long way from NZ to anywhere, and running cable is expensive).

Number 1 is very true. Number 2 - everyone's still complaining, but it's not as bad as it was. Four years ago when I first went into a flat, we were paying $50 per month (~$30US I guess) for flat rate, but it was 256kbps download (optimistically) so was barely worth having. (Were paying $40 per month on top of this for a phone line).

I'm now paying ~$70 per month (about nothing in US dollars with the way it's going - $35 at present) and get a VoIP phone line and an ADSL2 connection as fast as my line can connect (about 7Mb down, just under 1 up). I pay $1/gig for traffic, so if I torrent a movie Linux ISO then it costs me about $2 ($1US). I could go to another plan and pay $1.50 during the day, and get 75gig per month of free traffic between midnight and 6am each day.

At work we pay $150 per month for 2Mb guaranteed, 5Mb peak, sync, unlimited traffic.

There are still a lot of crappy plans, but it's not as bad as it's made out to be.

International traffic is indeed still the bottleneck (This site told me things were "Very Slow" when I was trying to load the comments on the article), and as I understand it there's still a whole lot of capacity being wasted on the approriate cables, but it's still a lot better than it was. I can peruse the 'net quite quickly generally.

Interestingly, one of my mate's had his Intenet cut off a few months back (well before this law was a hot topic). Apparently Sony BMG complained someone had downloaded a movie on that connection. He just called the ISP and told them he'd set up his wireless insecurely and it must've been the neighbour (well, it must have, I wouldn't associate with criminals now, would I?) and they connected him back up.

Finally, I've been considering how we can twist this law in ways that the legislators didn't envisage. NZ Copyright law means that everything on the web in NZ, published by an NZer is copyrighted to either the owner or creator. When you go to my website, you download my HTML, CSS, images etc - all copyrighted. I'm thinking of putting an image on a site that clearly says "this image is copyrighted and illegal to download" and laying complaints against anyone who views it.

We can then extrapolate on this. What if I embed the same image with an <img> tag into an email? Joe Bloggs opens the mail, the image downloads (although he will have to confirm if using Outlook) and he's broken copyright, and I can lay a complaint. What if I send the email to the Prime Minister's office? How about 30 of my friends at the same University (30 complaints on one connection?)? What about if I send it to my ISP's helpdesk - do they have to cut themselves off?

And what about ISP's that cache? It's becoming a little less common these days, but back in the old days lots of NZ ISPs cached web stuff. Will they have to cut themselves off for that?

As a Kiwi I can also wonder if this will either affect the price or quality of service from ISPs. Some percentage of those inclined to look elsewhere for better jobs and quality of life might be inclined to weigh it as encouraging migration, various destinations seeming to have a saner view by and large.

For those inclined to stay in New Zealand it points to the arbitrariness of law in a non-republic. While in the future the Internet will be a necessity - including interacting with government, copyright infringement is an offence (criminal) and should be treated in the courts. One could think that 92A could be shown to fall afoul of our Bill of Rights Act in four ways: An act proposed of law is supposed to be consistent withe Bill of Rights Act, and if not reported as such; If you are charged with an offence you have the right to trial by jury; if you are charged with an offence you are to be presumed innocent until proven guilty; you have the right to a fair trial and be present at your trial; you have the right present a defence and cross examine witnesses.

“92A Internet service provider must have policy for terminating accounts of repeat infringers * “(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

“(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

The way forward would be for ISPs to require infringement be proven in a court of law and not by third party fiat, however 92D:

quote:

92D Requirements for notice of infringement * A notice referred to in section 92C(3) must—

“(a) contain the information prescribed by regulations made under this Act; and

“(b) be signed by the copyright owner or the copyright owner’s duly authorised agent.

Means that an accusation is enough, and it appears someone can suffer consequences of an unproven offence to which you are entitled the presumption of innocence until proven in a court of law.

You could further note that there is no penalty for false accusation nor requirement of proof, something the RIAA might die to have in the United States.

The leverage on ISPs to drop the accounts of repeat infringers is the loss of liability immunity for storing copyright works by an unproven acts by the repeat infringers. It's the same quid pro quo as in the DMCA, the ISP is offered the presumption of non-complicity from the infringers act if he has a policy for terminating repeat infringers. The notice of an infringement puts the ISP on notice and potentially liable unless they terminate a repeat infringers service.

Unlike the DMCA there is no counter notification that would likewise let the ISPs off the hook for infringement while the 'infringer' would solely shoulder the consequence. Presumably this works under the DMCA as a check and balance against error ( e.g. filenames, fair use - in NZ incidental copying/criticism, review and news reporting - fair dealing/ Research or private study/educational purposes) or malicious notification.

It's really about the balance of power between copyright holders and everyone else. The NZ law shifts that balance toward the copyright holder without requiring legal certainty.

Actually, I do have one point about the terminology in the story which might be a bit confusing:

"New Zealand's creative industries,"

...New Zealand Creative Industries (NZCI) is an organisation representing it's members (RIANZ, etc.). They don't have a mandate to represent all creative industries or to consult with the wider creative industry.

This law was the last insult from a deeply unpopular and dying Labour government and a minister who was a toady of the music / film industry. They were, in fact, voted out of office (though not probably because of this, but rather their general arrogance and incompetence...). The current government, while it did not enact the provisions, declined to repeal them saying only that it would "monitor" the implementation of the provisions with a possible review at a later date.

Keep in mind that the law does not require (or empower) ISPs to monitor user's traffic or to cooperate in detecting downloading /uploading activities only to respond to repeated reports from rights-holders. It is possible to detect distributors of copyrighted files, but not generally to identify downloaders unless you are either the party offering the download (in which case it is not an infringement of copyright) or the ISP providing the connection. Distributing files via peer-to-peer networks is generally a finacially crippling proposition given normal charges for bandwidth in NZ.

If cases ar brought, it is likely that there would be an early test of this section under the Human Rights Act (weak equivalent of the US bill of Rights) which guarantees due process. It seems unlikely that this section would survive a challenge...

Having no other recourse than to use the pitiful internet service here in NZ ("broadband" only in the "broadest" sense of the term!), I can tell you that the ISPs' greatest weapon against piracy is, in fact, their own rickety infrastructure!If content owners want to bulletproof themselves against Kiwi pirates, all they have to do is make their software 10 gigs or larger and no pirate here will try his patience to the extent it will require waiting for the goodies to finally come down the line. Apple, I suspect, seem to know this, hence their packaging together several applications and necessary support material into 'suites' (e.g. Logic Pro Suite, Final Cut Pro Suite, etc.).